9-10.010
Federal Prosecutions in Which the Death Penalty May be Sought
|
This Chapter sets forth the policies and procedures for all Federal
cases in which a defendant is charged, or could be charged, with an offense
subject to the death penalty. The provisions of this Chapter apply
regardless of whether the United States Attorney or Assistant Attorney
General intends to charge the offense subject to the death penalty or to
request authorization to seek the death penalty for such an offense. The
provisions in this Chapter are effective July 27, 2011, and they apply to
any case currently under indictment.
[updated July 2011]
9-10.020
Relevant Statutory Provisions
|
Federal death penalty procedure is based on the Federal Death Penalty
Act of 1994, codified at 18 U.S.C. §§ 3591 to 3599.
The death penalty procedures introduced by the Anti-Drug Abuse Act of
1988, codified in Title 21, were repealed on March 6, 2006, when President
Bush signed the USA PATRIOT Improvement and Reauthorization Act of 2005. A
district indicting a Title 21 capital offense, see 21 U.S.C.
§ 848, that occurred before March 6, 2006, should consult with the
Capital Case Unit of the Criminal Division regarding indictment and
procedure.
[updated July 2011]
9-10.030
Purposes of the Capital Case Review Process
|
The review of cases under this Chapter culminates in a decision to seek,
or not to seek, the death penalty against an individual defendant. Each such
decision must be based upon the facts and law applicable to the case and be
set within a framework of consistent and even-handed national application of
Federal capital sentencing laws. Arbitrary or impermissible
factors—such as a defendant's race, ethnicity, or religion—will
not inform any stage of the decision-making process. The overriding goal of
the review process is to allow proper individualized consideration of the
appropriate factors relevant to each case.
[updated June 2007]
9-10.040
General Process Leading to the Attorney General's Determination
|
Except as otherwise provided herein (see
§§ 9-10.100(D) and
9-10.150(B)), the Attorney General will make the final decision about
whether to seek the death penalty. The Attorney General will convey the
final decision to the United States Attorney or Assistant Attorney General
in a letter authorizing him or her to seek or not to seek the death
penalty.
The decision-making process preliminary to the Attorney General's final
decision is confidential. Information concerning the deliberative process
may only be disclosed within the Department and its investigative agencies
as necessary to assist the review and decision-making. This confidentiality
requirement does not extend to the disclosure of scheduling matters or the
level at which the decision is pending within the Department during the
review process. The scope of confidentiality includes, but is not limited
to: (1) the recommendations of the United States Attorney's Office or
Department component, the Attorney General's Review Committee on Capital
Cases (hereinafter the "Capital Review Committee"), the Deputy Attorney
General, and any other individual or office involved in reviewing the case;
(2) a request by a United States Attorney or Assistant Attorney General that
the Attorney General authorize withdrawal of a previously filed notice of
intent to seek the death penalty; (3) a request by a United States Attorney
or Assistant Attorney General that the Attorney General authorize not
seeking the death penalty pursuant to the terms of a proposed plea
agreement; and (4) the views held by anyone at any level of review within
the Department.
In no event may the information identified in this paragraph be
disclosed outside the Department and its investigative agencies without
prior approval of the Attorney General. The United States Attorneys may
exercise their discretion, however, to place additional limits on the scope
of confidentiality in capital cases prosecuted in their Districts.
[updated July 2011]
9-10.050
Requesting Authorization Not to Seek the Death Penalty Prior to
Charging a Capital Offense or Prior to Receipt of Defense Mitigation
Submission
|
Prior to seeking an indictment for an offense subject
to the death penalty, the United States Attorney is strongly
advised, but not required, to consult with the Capital Case
Unit.
If possible, before obtaining an indictment charging a capital offense,
the United States Attorney or Assistant Attorney General should make a
preliminary determination of whether he or she will recommend that the death
penalty be sought. If the case is sufficiently developed to allow the United
States Attorney or Assistant Attorney General to make a pre-indictment
determination that he or she will not recommend seeking the death penalty,
the United States Attorney or Assistant Attorney General should, absent
extenuating circumstances, submit the case expeditiously for review under
the provisions of this Chapter prior to obtaining an indictment charging a
capital-eligible offense. Extenuating circumstances include, but are not
limited to, the need for presentment of capital eligible charges to comply
with the Speedy Trial Act, to effect arrest more swiftly, to address public
safety concerns, or to address other specific law enforcement objectives.
No decision to seek the death penalty will be made prior to the filing
of a capital indictment. If after review of a pre-charge request not to seek
the death penalty, the Attorney General determines that the case should be
further developed prior to making a determination whether to seek the death
penalty, then the Attorney General will deny the request for authorization
not to seek the death penalty. The United States Attorney or Assistant
Attorney General should then follow the procedures set forth elsewhere in
this Chapter.
In some cases the United States Attorney or the Assistant Attorney
General may be unable to present a case for review prior to charging a
capital offense but the case may be sufficiently developed to allow the
United States Attorney or Assistant Attorney General to make a determination
prior to receiving any submission from the defense that he or she will not
recommend seeking the death penalty. In such case, the United States
Attorney or Assistant Attorney General should, as soon as possible after
charging a capital offense, submit the case for review under the provisions
of this Chapter. If after reviewing a request that does not include input
from counsel for the defendant( s), the Attorney General determines that the
case should be further developed prior to making a determination whether to
seek the death penalty, then the Attorney General will deny the request for
authorization not to seek the death penalty. The United States Attorney or
Assistant Attorney General should then follow the procedures set forth
elsewhere in this Chapter.
[updated July 2011]
[cited in
USAM 9-10.080;
USAM 9-10.100]
9-10.055
Requirement to Notify Capital Case Unit When a Capital Offense is
Charged
|
In all cases, the United States Attorney or Assistant Attorney General
must immediately notify the Capital Case Unit when a capital offense is
charged and provide the Unit with a copy of the indictment and cause number,
even if the materials described in
§ 9-10.080, infra, are
not yet ready for submission.
[added July 2011]
9-10.060
Special Findings in Indictments
|
For all charged offenses subject to the provisions of this Chapter,
regardless of whether the United States Attorney or Assistant Attorney
General ultimately recommends that
the Attorney General authorize seeking the death penalty for the charged
offense, the indictment shall allege as special findings: (1) that the
defendant is over the age of 18; (2) the existence of the threshold intent
factors specified in 18 U.S.C. § 3591(a)(2); and (3) the existence of the
statutory aggravating factors specified in, as relevant, 18 U.S.C.
§§ 3592(b), (c), or (d).
The indictment shall allege threshold intent and statutory aggravating
factors that meet the criteria for commencing prosecution as set forth in
USAM §§ 9-27.200,
9-27.220.
Prosecuting Assistant United States Attorneys or Department trial attorneys
are encouraged to consult with the Capital Case Unit regarding the inclusion
of special findings in the indictment.
[updated July 2011]
[cited in USAM 9-10.080]
9-10.070
Consultation with the Family of the Victim
|
Unless extenuating circumstances exist, the United States Attorney or
Assistant Attorney General
should consult with the family of the victim, if reasonably available,
concerning the decision on whether to seek the death penalty. The United
States Attorney or Assistant Attorney General should include the views of
the victim's family concerning
the death penalty in any submission made to the Department. The United
States Attorney or Assistant Attorney General should notify the family of
the victim of all final decisions regarding the death penalty. This
consultation should occur in addition to notifying victims of their rights
under 18 U.S.C. § 3771.
[updated July 2011]
9-10.080
Submissions from the United States Attorney or Assistant Attorney General
|
The United States Attorney or Assistant Attorney General must submit to
the Assistant Attorney General for the Criminal Division every case in which
an indictment has been or will be obtained that charges an offense
punishable by death or alleges conduct that could be charged as an offense
punishable by death. In any case in which the United States Attorney or
Assistant Attorney General is considering whether to request approval to
seek the death penalty, the United States Attorney or Assistant Attorney
General shall give counsel for the defendant a reasonable opportunity to
present any facts, including any mitigating factors, for the consideration
of the United States Attorney or Assistant Attorney General.
The United States Attorney or Assistant Attorney General must make
submissions to the Assistant Attorney General for the Criminal Division as
expeditiously as possible, but no fewer than 90 days before the Government
is required, by an order of the court, to file a notice that it intends to
seek the death penalty. In the absence of a court established deadline for
the Attorney General's death penalty decision, the United States Attorney or
Assistant Attorney General must make the submission sufficiently in advance
of trial to allow for both the 90 day time period encompassed by the review
process plus any additional time necessary to ensure that a notice of intent
to seek the death penalty is timely filed under 18 U.S.C. § 3593(a). If a
case is not submitted 90 days in advance of a deadline for the Attorney
General's decision or 150 days in advance of a scheduled trial date, the
prosecution memorandum should include an explanation of why the submission
is untimely.
The prosecution memoranda, death penalty evaluation forms,
non-decisional information forms and any other internal memoranda informing
the review process and the Attorney General's decision are not subject to
discovery by the defendant or the defendant's attorney.
Submissions to the Capital Case Unit should note plainly whether the
case fits any of the following unusual circumstances:
- The case is submitted for "expedited review," as described in
Section 9-10.100, infra.
- The case presents a significant law enforcement reason for not seeking
the death penalty (such as the defendant's willingness to cooperate in an
important but difficult prosecution).
- The case has been submitted for pre-indictment review as provided in
Section 9-10.050, supra.
- The case has been submitted prior to receipt of any submission from the defense as
provided in Section 9-10.050,
supra.
Except in cases submitted pursuant to
Section 9-10.100, the submission
should include:
- Prosecution memorandum. This should be sufficiently detailed to
fully inform reviewers of the basis for the United States Attorney's or
Assistant Attorney General's recommendation. The
prosecution memorandum
should include:
(1) Deadlines. Any deadline established by the Court for the filing of a
notice of intent to seek the death penalty, trial dates, or other time
considerations that could affect the timing of the review process should be
noted on the first page of the memorandum.
(2) A narrative delineation of the facts and separate delineation of the
supporting evidence. Where necessary for accuracy, a chart of the evidence
by offense and offender should be appended.
(3) Discussion of relevant prosecutorial considerations.
(4) Death penalty analysis. The analysis must identity applicable threshold
intent factors under 18 U.S.C. § 3591, applicable statutory
aggravating factors under the subsections of 18 U.S.C.
§§ 3592(b)-(d), and applicable mitigating factors under 18 U.S.C.
§ 3592(a). In addition, the United States Attorney or Assistant
Attorney General should include his or her conclusion on whether all the
aggravating factor(s) found to exist sufficiently outweigh all the
mitigating factor(s) found to exist to justify a sentence of death, or in
the absence of mitigating factors, whether the aggravating factor(s) alone
are sufficient to justify a sentence of death. The analysis should also
include a discussion of the standards for determination as set forth in
Section 9-10.130.
(5) Background and criminal record of the capital defendants.
(6) Background and criminal record of the victim.
(7) Victim impact. Views of the victim's family on seeking the death penalty
and other victim impact evidence should be provided.
(8) Discussion of the federal interest in prosecuting the case.
(9) Foreign citizenship. The memorandum should include a discussion on whether
the defendant( s) are citizens of foreign countries, and if so, whether the
requirements of the Vienna Convention on Consular Relations have been
satisfied.
(10) Recommendation of the United States Attorney or Assistant Attorney
General on whether the death penalty should be sought.
- Death-penalty evaluation form. The Department will specify a
standardized death-penalty evaluation form, which should be completed by the
United States Attorney or Assistant Attorney General for each
capital-eligible offense charged against each defendant.
- Non-decisional information form. This form should be submitted in
a sealed envelope clearly labeled as containing the non-decisional
information.
- Indictment. Copies of all existing and proposed superseding
indictments should be attached. As described in
Section 9-10.060, supra, the
indictments should include the special findings necessary for the death
penalty to be authorized by statute.
- Draft notice of intention to seek the death penalty. This
document is to be included in the submission only if the United States
Attorney or Assistant Attorney General recommends seeking the death
penalty.
- Materials provided by defense counsel. Any documents or materials
provided by defense counsel to the United States Attorney or Assistant
Attorney General in the course of the United States Attorney's Office or
Department component's death penalty review process should be provided.
These materials need not be solicited or submitted in cases presented
pursuant to Sections 9-10.050
or 9-10.100.
- Point-of-contact. The name of the assigned attorney in the United
States Attorney's Office or Department component who is responsible for
communicating with the Capital Case Unit about the case should be
provided.
- Relevant court decisions. The first page of the memorandum should
highlight court orders and deadlines. The point-of-contact in the United
States Attorney's Office or Department component is under a continuing
obligation to update the Capital Case Unit about developments or changes in
court scheduling or any other material aspect of the case.
[updated July 2011]
[cited in USAM 9-10.050;
9-10.055;
9-10.100]
9-10.090
Substantial Federal Interest
When concurrent jurisdiction exists with a State or local government, a
Federal indictment for an offense subject to the death penalty generally
should be obtained only when the Federal interest in the prosecution is more
substantial than the interests of the State or local authorities. See
Principles of Federal Prosecution, USAM
Chapter 9-27.000.
The judgment as to whether there is a more substantial interest in Federal,
as opposed to State, prosecution may take into account any factor that
reasonably bears on the relative interests of the State and the Federal
Governments, including but not limited to the following:
- The relative strength of the State's interest in prosecution as
indicated by the Federal and State characteristics of the criminal conduct.
One jurisdiction may have a particularly strong interest because of the
nature of the offense, the identity of the offender or victim, the fact that
the investigation was conducted primarily by its investigators or through
its informants or cooperators, or the possibility that prosecution will lead
to disclosure of violations that are peculiarly within the jurisdiction of
either Federal or State authorities or will assist an ongoing investigation
being conducted by one of them.
- The extent to which the criminal activity reached beyond the boundaries
of a single local prosecutorial jurisdiction. Relevant to this analysis are
the nature, extent, and impact of the criminal activity upon the
jurisdictions, the number and location of any murders, and the need to
procure evidence from other jurisdictions, in particular other States or
foreign countries.
- The relative ability and willingness of the State to prosecute
effectively and obtain an appropriate punishment upon conviction. Relevant
to this analysis are the ability and willingness of the authorities in each
jurisdiction, the prosecutorial and judicial resources necessary to
undertake prosecution promptly and effectively, legal or evidentiary
problems that might attend prosecution, conditions, attitudes,
relationships, and other circumstances that enhance the ability to prosecute
effectively or, alternatively, that cast doubt on the likelihood of a
thorough and successful prosecution.
[updated June 2007]
9-10.100
Expedited Review Procedures for Certain Recommendations Not to Seek
the Death Penalty
- Certain defendants and categories of cases are appropriate for summary
disposition on an expedited basis. These include:
(1) cases in which the defendant is ineligible for the death penalty because
the evidence is insufficient to establish the requisite intent under 18
U.S.C. § 3591 or an applicable statutory aggravating factor under
18 U.S.C. § 3592 (b)-(d);
(2) cases that involve the extradition of a defendant or crucial witness
from a country that, as a precondition to extradition, requires assurances
that the death penalty will not be sought for the defendant or the evidence
obtained from the witness will not be used to seek the death penalty;
(3) cases in which, but for proffer protected evidence,
the evidence is insufficient to convict the defendant of the capital offense
to which he will plead guilty; and (4) cases that involve a potential
cooperator whose testimony is necessary to indict the remaining
offenders.
- The cover of the submission should indicate in bold lettering that the
United States Attorney or Assistant Attorney General is seeking expedited
review, and it should also indicate the basis on which the case qualifies
for expedited review. The submission memorandum need not include all of the
information set forth in Section 9-10.080,
but should provide a description
of the facts of the case and should be sufficiently thorough to make clear
the basis upon which the case qualifies for expedited review. In all cases
eligible for expedited review, the United States Attorney or Assistant
Attorney General need not solicit or submit mitigation information from the
defendant unless otherwise directed by the Assistant Attorney General for
the Criminal Division.
- The Capital Case Unit will screen all cases in which the United States
Attorney's Office or Department component seeks expedited review to ensure
that such review is appropriate. The Unit will then give priority to cases
so designated. If the Capital Case Unit finds that the case does not qualify
for expedited review, it will be scheduled for review on a non-expedited
basis or returned to the United States Attorney's Office or Department
component for later submission.
- In cases in which the Government intends to accept a guilty plea to a
capital offense when, but for the defendant's protected proffer, there would
be insufficient evidence to charge the offense, the Capital Case Unit may
authorize the United States Attorney to proceed with such pleas without
submitting the cases to the review process.
[updated July 2011]
[cited in USAM 9-10.080;
9-10.040]
9-10.110
Plea Agreements
|
The death penalty may not be sought, and no attorney for the Government
may threaten to seek it, solely for the purpose of obtaining a more
desirable negotiating position. Absent the authorization of the Attorney
General, the United States Attorney or Assistant Attorney General may not
enter into a binding plea agreement that precludes the United States from
seeking the death penalty with respect to any defendant falling within the
scope of this Chapter.
The United States Attorney or Assistant Attorney General, however, may
agree to submit for the Attorney General's review and possible approval, a
plea agreement relating to a capital eligible offense or conduct that could
be charged as a capital eligible offense. At all times, the United States
Attorney or Assistant Attorney General must make clear to all parties that
the conditional plea does not represent a binding agreement, but is
conditioned on the authorization of the Attorney General. The United States
Attorney or Assistant Attorney General should not inform the defendant,
court, or public of whether he or she recommends authorization of the plea
agreement.
For proposed plea agreements that precede a decision by the Attorney
General to seek or not to seek the death penalty, the United States Attorney
or Assistant Attorney General
should send a request for approval to the Assistant Attorney General for the
Criminal Division as early as possible. Absent unavoidable circumstances,
the United States Attorney or Assistant Attorney General must send the
request no later than 90 days prior to the date on which the Government
would be required, by an order of the court or by the requirements of 18
U.S.C. § 3593(a), to file a notice that it intends to seek the
death penalty. (Proposed plea agreements that would require withdrawing a
previously filed notice of intent to seek the death penalty should follow
the procedures described in 9-10.150,
infra.)
Unless a potential capital defendant's testimony is necessary to indict
the remaining ofIenders or other circumstances compel separate
consideration, review of the case against the prospective cooperator will
occur simultaneously with the review of the cases against the remaining
offenders who would be indicted for the offenses at issue.
In submissions in
support of requests for approval of plea agreements under this section, the
prosecution memorandum must include an explanation of why the plea agreement
is an appropriate disposition of the charges,
a death penalty evaluation form for each capital eligible offense that has
been or could be charged against the prospective cooperator, and a
non-decisional information form. The Capital Review Committee will review
requests for authorization to enter into a plea agreement under this
subsection and, if a submission from defense counsel is not included with
the submission, may request such a submission and schedule the case for a
Committee conference.
See USAM Chapter 9-16.000 for more information
on the topic of pleas and plea agreements.
[updated July 2011]
9-10.120
Department of Justice Review
|
Upon receipt of the materials submitted by the United States Attorney or
Assistant Attorney General, the Assistant Attorney General for the Criminal
Division will forward the materials to the Criminal Division's Capital Case
Unit.
In any case in which (1) the United States Attorney or Assistant
Attorney General recommends that the Attorney General authorize seeking the
death penalty, or (2) a member of the Capital Review Committee requests a
Committee conference, a Capital Case Unit attorney will confer with
representatives of the United States Attorney's Office or Department
component to establish a date and time for the Capital Review Committee to
meet with defense counsel and representatives of the United States
Attorney's Office or Department component to consider the case. No final
decision to seek the death penalty shall be made if defense counsel has not
been afforded an opportunity to present evidence and argument in
mitigation.
The Capital Review Committee shall review the materials submitted by the
United States Attorney or Assistant Attorney General and any materials
submitted by defense counsel. The
Capital Review Committee will consider all information presented to it,
including any allegation of individual or systemic racial bias in the
Federal administration of the death penalty. After considering all
information submitted to it, the Committee shall make a recommendation to
the Attorney General through the Deputy Attorney General.
If the Committee's recommendation differs from that of the United States
Attorney or Assistant Attorney General, the United States Attorney or
Assistant Attorney General shall be provided with a copy of the Committee's
recommendation memorandum when it is transmitted to the Deputy
Attorney General. The United States Attorney or Assistant Attorney General
may respond to the Committee's analysis in a memorandum directed to the
Deputy Attorney General. The Deputy Attorney General will then make a
recommendation to the Attorney General. The Attorney General will make the
final decision whether the Government should file a notice of intent to seek
the death penalty.
[updated July 2011]
9-10.130
Standards for Determination
The standards governing the determination to be reached
in cases under this Chapter include fairness, national
consistency, adherence to statutory requirements, and
law-enforcement objectives.
- Fairness requires all reviewers to evaluate each case on its own merits
and on its own terms. As with all other actions taken in the course of
Federal prosecutions, bias for or against an individual based upon
characteristics such as race or ethnic origin play no role in any
recommendation or decision as to whether to seek the death penalty.
- National consistency requires treating similar cases similarly, when the
only material difference is the location of the crime. Reviewers in each
district are understandably most familiar with local norms or practice in
their district and State, but reviewers must also take care to
contextualize a given case within national norms or practice. For this
reason, the multi-tier process used to make determinations in this Chapter
is carefully designed to provide reviewers with access to the national
decision-making context, and thereby, to reduce disparities across
districts.
- In determining whether it is appropriate to seek the death penalty, the
United States Attorney or Assistant Attorney General, the Capital Review
Committee, the Deputy Attorney General, and the Attorney General will
determine whether the applicable statutory aggravating factors and any
non-statutory aggravating factors sufficiently outweigh the applicable
mitigating factors to justify a sentence of death or, in the absence of any
mitigating factors, whether the aggravating factors themselves are
sufficient to justify a sentence of death. Reviewers are to resolve
ambiguity as to the presence or strength of aggravating or mitigating
factors in favor of the defendant. The analysis employed in weighing the
aggravating and mitigating factors should be qualitative, not quantitative:
a sufficiently strong aggravating factor may outweigh several mitigating
factors, and a sufficiently strong mitigating factor may outweigh several
aggravating factors. Reviewers may accord weak aggravating or mitigating
factors little or no weight. Finally, there must be substantial, admissible,
and reliable evidence of the aggravating factors.
- In deciding whether it is appropriate to seek the death penalty, the United States Attorney
or Assistant Attorney General, the Capital Review Committee, the Deputy Attorney
General, and the Attorney General may consider any legitimate law-enforcement or
prosecutorial reason that weighs for or against seeking the death penalty. Those
considerations may include, but are not limited to:
(1) The strength and nature of the evidence;
(2) The relative roles in the offense of defendants in jointly undertaken
criminal activity;
(3) Whether the offense was intended to obstruct justice or was otherwise
motivated by the victim's cooperation with law enforcement or the belief
that the victim was cooperating with law enforcement;
(4) Whether the offense was committed to retaliate against a third-party for
cooperating with law enforcement or against a third party believed to be
cooperating with law enforcement;
(5) Whether the victim engaged in criminal activity which was a relevant
circumstance of the offense;
(6) Whether a defendant without serious prior convictions had nonetheless
engaged in criminal activity for which he had not been held accountable;
(7) Whether the defendant is already serving a substantial sentence such
that an additional sentence of incarceration would have little punitive
impact;
(8) Whether the defendant has a history of infractions or offenses while
incarcerated; and
(9) Whether the defendant has accepted responsibility for his conduct as demonstrated by
his willingness to plead guilty and accept a life or near-life sentence without the
possibility of release.
[new July 2011]
[cited in USAM 9-10.080]
9-10.140
Post-Decision Actions
|
In any case in which the Attorney General has authorized the filing of a
notice of intention to seek the death penalty, the United States Attorney or
Assistant Attorney General
shall not file or amend the notice until the Capital Case Unit of the
Criminal Division has approved the notice or the proposed amendment. The
notice of intention to seek the death penalty shall be filed as soon as
possible after transmission of the Attorney General's decision to seek the
death penalty.
The United States Attorney or Assistant Attorney General should promptly
inform the district court and
counsel for the defendant once the Attorney General has made the final
decision. Expeditious communication is necessary so that the court is aware,
in cases in which the Attorney General authorizes the United States Attorney
or Assistant Attorney General not to seek the death penalty,
that appointment of counsel under 18 U.S.C. § 3005 is not required
or is no longer required. In cases in which the Attorney General authorizes
the United States Attorney or Assistant Attorney General to seek the death
penalty, the district court and defense counsel should be given as much
opportunity as possible to make proper scheduling decisions.
[new July 2011]
[cited in
USAM 9-10.110]
9-10.150
Withdrawal of the Notice of Intention to
Seek the Death Penalty
- Request by a United States Attorney or Assistant Attorney General
Once the Attorney General has authorized a United States Attorney or
Assistant Attorney General to seek the death penalty, the United States
Attorney may not withdraw a notice of intention to seek the death penalty
filed with the district court unless authorized by the Attorney
General.
- If a United States Attorney or Assistant Attorney General wishes to
withdraw the notice, the United States Attorney or Assistant Attorney
General shall advise the Assistant Attorney General for the Criminal
Division of the reasons for that request. The United States Attorney or
Assistant Attorney General should base the withdrawal request on material
changes in the facts and circumstances of the case from those that existed
at the time of the initial determination.
Upon receipt of such a request, the Assistant Attorney General for the
Criminal Division shall submit the request to the Capital Case Unit, which
will seek review of the request by the Capital Review Committee. To the
extent possible, the Capital Review Committee should include the members who
originally considered the case. Reviewers should evaluate the withdrawal
request under the principles used to make an initial determination, and
limit the evaluation to determining if the changed facts and circumstances,
had they been known at the time of the initial determination, would have
resulted in a decision not to seek the death penalty. For this reason,
information or arguments that had been advanced initially are not normally
appropriate bases for withdrawal requests. In all cases, however, reviewers
should consider all necessary information to ensure every defendant is given
the individualized consideration needed for full review and appropriate
decision-making.
The Capital Review Committee will make a recommendation to the Attorney
General through the Deputy Attorney General on whether the notice of intent
to seek the death penalty should be withdrawn.
- Request by a defendant
Any request by a defendant for withdrawal of a notice of intention to seek
the death penalty should be submitted in the first instance to the United
States Attorney or Assistant Attorney General responsible for the
prosecution. If the United States Attorney or Assistant Attorney General
concurs in the request, then he or she should follow the procedures in
Section A above. Otherwise, the United States Attorney or Assistant Attorney
General should submit the defendant's request along with a brief memorandum
outlining the reasons why the United States Attorney or Assistant Attorney
General opposes the request to the Assistant Attorney General for the
Criminal Division. Absent extraordinary circumstances, the Department will
not consider successive defense requests to withdraw the notice of intention
to seek the death penalty.
Upon receipt of such a request, the Assistant Attorney General for the
Criminal Division shall submit the request to the Capital Case Unit, which
will seek review of the request by the Capital Review Committee. To the
extent possible, the Capital Review Committee should include the members who
originally considered the case. Reviewers should evaluate the withdrawal
request under the principles used to make an initial determination, and
limit the evaluation to determining if the changed facts and circumstances,
had they been known at the time of the initial determination, would have
resulted in a decision not to seek the death penalty. For this reason,
information or arguments that had been advanced initially are not normally
appropriate bases for withdrawal requests. In all cases, however, reviewers
should consider all necessary information to ensure every defendant is given
the individualized consideration needed for full review and appropriate
decision-making.
Unless the Capital Review Committee unanimously agrees with the defendant's
request to withdraw the notice of intention to seek the death penalty, the
Assistant Attorney General for the Criminal Division will inform the United
States Attorney or Assistant Attorney General that the request has been
denied. If the Capital Review Committee unanimously recommends withdrawing
the notice of intention to seek the death penalty, then the Capital Review
Committee will make that recommendation to the Attorney General through the
Deputy Attorney General.
The Attorney General shall make the final decision on whether to authorize
the withdrawal of a notice of intention to seek the death penalty upon any
request made or endorsed by the United States Attorney or Assistant Attorney
General. Until such a decision is made, the United States Attorney or
Assistant Attorney General should proceed with the case as initially
directed by the Attorney General. The fact that a withdrawal request has
been made is confidential and may not be disclosed to any party outside the
Department of Justice and its investigative agencies.
- [updated July 2011]
[cited in 9-10.040;
9-10.110]
9-10.160
Approval Required For Judicial Sentencing Determination
- In cases in which the Attorney General has authorized seeking the death
penalty, the United States Attorney or Assistant Attorney General must
obtain the approval of the Assistant Attorney General for the Criminal
Division before agreeing to a
request by the defendant pursuant to 18 U.S.C. § 3593(b)(3) for
the sentence to be determined by the trial court rather than a jury.
- [updated July 2011]
9-10.170
Reporting Requirements
- Each United States Attorney's Office or Department component must
identify a point-of-contact who will be responsible for ensuring compliance
with the following reporting requirements.
- The Capital Case Unit must be immediately notified
when:
- A capital offense is charged or when an indictment is obtained
pertaining to conduct that could be, but has not been, charged as a capital
offense. The point-of-contact should provide the Unit with a copy of the
indictment and cause number.
- A deadline for filing a notice of intent to seek the death penalty or a
trial date is established or modified.
- There are any developments that could affect the ability to file a
notice of intent to seek the death penalty sufficiently in advance of trial
to allow the defense and prosecution to prepare for a capital punishment
hearing.
- A verdict and sentence are reached in a case in which the Attorney
General authorized seeking the death penalty.
- The victim's family must be notified of all final decisions regarding
the death penalty.
- [updated July 2011]
9-10.180
Forms and Procedures
- The Assistant Attorney General for the Criminal Division, the Deputy
Attorney General, and the Attorney General may promulgate forms and
procedures to implement the provisions of this Chapter. The United States
Attorney should contact the Capital Case Unit to discuss the applicable
procedures and obtain the appropriate forms.
- [new June 2007]
9-10.190
Exceptions for the Proper Administration
of Justice
- To ensure the proper administration of justice in an appropriate case,
the Attorney General may authorize exceptions to the provisions of this
Chapter.
- [new June 2007]
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